The attached correspondence with LAZ are my further comments in response to online bloggers who wanted further information on the current issue that is ‘eating up’ our Bembaland. In spite of World Cup the papers are submitted in the hope of having a focused exchange of views and, hopefully, contribute to the amicable solution of an unnecessary public wrangle by the Zambian Government and thus strengthen and improve on our democratic governance and political culture.
The two documents, written to LAZ nine years ago (on 19th August 2005 and NOT 2009 as earlier stated), are meant to assist with a reasoned and productive response by bloggers; they were prompted by bloggers, particularly Nostradamus, Chitutuma, Mei Mutungu, Mulenga and Jelita, and Bupe Chanda. We may NOT always agree but let us address the issues raised, so that we can all benefit from any such discourse. In spite of World Cup we can still dialogue to keep Mother Zambia on course.
One blogger ‘@ Let me say this…’ wanted to know the role of the House of Chiefs. The Republican Constitution provides that the House of Chiefs “shall be an advisory body to the Government on traditional, customary and any other matters referred to it by the President”.
I consider the Chitimukulu saga to be of national concern and hence I do not write in order to ‘launch’ my political campaign! I have previously written to LAZ when other chiefs were threatened by the Government such as Senior Chief Nzamane and Chief Jumbe of Eastern Province.
Godfrey Miyanda,
Brigadier General,
Heritage Party
[17th June 2014]
A paper sent by Brigadier General Godfrey Miyanda to LAZ in 2005
RESTORING THE AUTHORITY OF TRADITIONAL RULERS
(A suggestion by Brigadier General Godfrey Miyanda)
PROPOSAL/RECOMMENDATION
It is proposed or recommended that the Judicature be modified or revised to embrace or include the traditional system of dispute resolution, based on the current Constitutional provisions as reflected in Part XIII of the current Constitution. It is contended that this change will not entail the amendment of the Constitution but instead will require an Act of Parliament to bring it into force. The Act of Parliament will derive its force or authority from Article 91 of the current Constitution (see below).
BACKGROUND
At a consultative conference organised by the Eastern Province Royal Foundation from 4th to 6th August 2005, at Luangwa House, Chipata, the following resolution was passed, inter alia that “The Royal Foundation be empowered to handle issues of succession instead of the courts”.
The author of this paper was in the Group that discussed and made recommendations which resulted in the above resolution. However, the resolution as framed by the Rapporteurs, is a misreporting of what was resolved in the Group discussion. The version as recorded is indicating that these disputes be excluded from the Court system, which is the very opposite of what the recommendation was. The author can confidently state that the import of this resolution was to enable the traditional leadership to deal with all “traditional disputes” to their finality, instead of the current position where they are taken to the High Court and eventually finally determined by the Supreme Court. In short the resolution was asking that the Court system to be re-arranged in such a manner that there be provision for the traditional courts to dispose of matters that fall under their jurisdiction, by bringing the “traditional courts” within the court system and , if need be, ending up in the House of Chiefs sitting as “a final court”.
THE COMPLAINT IN PERSPECTIVE
Generally the Chiefs have complained of “not being respected and being dragged” to ordinary courts of law and there being embarrassed by their subjects. Essentially the Chiefs were asking that “their authority be restored”. According to one remark, the Constitution has completely ignored them. In fact they feel that the new (proposed Mung’omba) constitution is better than the current one in this regard. This remark has prompted this further inquiry into the grievance and suggest what can be done. This paper does not discuss the debatable pros and cons of “chiefs not being dragged to courts”. This is an entirely different kettle of fish and would distract attention
from the immediate question being examined.
CURRENT LAW
Article 127 of the 1996 Constitution of the Republic states as follows in Part XIII:
“Article 127 (The Institution of Chief):
2
(1) Subject to the provisions of this Constitution, the Institution of Chief shall exist in any area of Zambia in accordance with the culture, customs and traditions or wishes and aspirations of the people to whom it applies.
(2) In any community, where the issue of a Chief has not been resolved, the issue shall be resolved by the community concerned using a method prescribed by an Act of Parliament.
Article 128 (Concept and principles relating to the Institution of Chiefs): The following concepts and principles shall apply to Chiefs:
(a) the Institution of Chief shall be a corporation sole with perpetual succession and with capacity to sue and be sued and to hold assets or properties in trust for itself and the people concerned;
(b) nothing in paragraph (a) shall be taken to prohibit a Chief from holding any asset or property acquired in a personal capacity; and
(c) a traditional leader or cultural leader shall enjoy such privileges and benefits as may be conferred by the Government and the local government or as that leader may be entitled to under culture, custom and tradition”.
GENERAL COMMENT: The Mung’omba Commission has reproduced Articles 127 and 128 almost verbatim, except that they have excluded Article 129 which reads in the following terms:
“A person shall not, while remaining a Chief, join or participate in partisan politics”. However this is not part of the case that is being canvassed in this paper. Both Articles 128 and 129 are reproduced only for completeness and to enable easy reference but ARE NOT the subject of this short paper.
[pullquote]It is contended that as presently framed in Article 127, the authority and/or mandate for the management and resolution of disputes in a traditional setting is reposed in the communities[/pullquote]
SPECIFIC COMMENT ON ARTICLE 127:
It is contended that this Article “recognises” the Institution of Chief in Zambia. It appears that prior to this provision, there was no such acknowledgement in the Constitution. In fact there are reports suggesting that the leadership of the First Republic had planned to completely abolish the Institution of Chiefs.
It is contended that as presently framed in Article 127, the authority and/or mandate for the management and resolution of disputes in a traditional setting is reposed in the communities, that is to say the Chiefs and their subjects. It is thus contended and canvassed that the “authority” of chiefs has not been taken away; but that instead the Constitution has been ignored or misinterpreted. Of course there have been overzealous Ministers, especially those of the Local Government Ministry, who are the main culprits, as well as the Presidents themselves.
But the Chiefs themselves fell for the political ploy by accepting to serve in political appointments such as Member of the Central Committee (MCC) or District Governor (DG). They ended up turning up at airports to await the arrival of their subject who was now their political leader; or driving in the night to Lusaka to go and report about events in their District to the President. In a way, they themselves surrendered their “authority” to politicians, albeit by the trick of politicians. It was like Esau the First Born son, giving up his birthright to his young brother Jacob the Dribbler. So the Chiefs had a hand in the later developments of the loss of their “authority” to their subjects in political offices.
It appears that prior to the 1996 Constitution no such “recognition” of traditional authority as is provided for in Article 127 was contained in the Constitution. In the short time in which this paper has been prepared it is possible to miss out the constitutional provisions that may suggest otherwise; for this an apology is given in advance. But a cursory glance at the Northern Rhodesia 3 (Constitution) Order-In-Council 1962 and Section 4 of the Zambia Independence Order 1964 indicates that this may be the only detailed reference to chiefs, the House of Chiefs Regulations.
Regrettably, at the time of writing this paper the author did not have a copy of the Chiefs Act. So his comments in this regard may not be well-informed. However his recollection of the Chiefs Act is that it grants the Republican President the power or authority to “recognise” chiefs. He has not been able to find a definition of the word “recognise or recognition” in the Constitution or even in the Chiefs Act. However the nearest we get to a definition is in Article 139 (1) where it is stated that “ ‘Chief’ means a person RECOGNISED BY THE PRESIDENT under the provisions of the Chiefs Act or any law amending or replacing that Act as the Litunga of Western Province, a Paramount Chief, Senior Chief, Chief or Sub-Chief or a person who is appointed as Deputy Chief”.
Since Article 127 already acknowledged the existence of the Institution of Chief in accordance with the culture, customs and traditions or wishes and aspirations of the people to whom it applies, it follows that there is nothing for the President to “recognise or refuse to recognise”. This process must be left entirely with the local people themselves.
Government should just be informed and should take note of the decision of the community, provided this is in
keeping with the customs and traditions of the area. If the worry is the expertise and/or uniformity of justice in the proposed court system, it is suggested that programmes for the researching and codification of the practices and procedures be undertaken, taking into account the spirit and letter of Article 127. Subsequently training can be conducted in the intricacies of “traditional law”! I am certain that LAZ can find the manpower to undertake such an important national assignment.
WAY FORWARD
Article 91 of the 1996 Constitution of the Republic of Zambia provides as follows:
“91. (1) The Judicature of the Republic shall consist of:
(a) the Supreme Court of Zambia.
(b) the High Court for Zambia.
(c) the Industrial Relations Court.
(d) the Subordinate Courts.
(e) the Local Courts; and
(f) such lower courts as may be prescribed by an Act of Parliament”.
It is suggested that this Article is sufficient to bring up the necessary Act/rules/regulations without major amendments of the Constitution. Already, under current procedures, there is provision for the use of Court Assessors to assist the ordinary courts where the Court needs such assistance in traditional matters. But instead of Magistrates and High Court Judges using assessors, the task should be given back to the Chiefs themselves, of course ensuring that by chiefs we are talking about the chiefs and their subjects.
The office of the Chief Justice can provide the necessary guidance and expertise to usher in the new “division” of the Judicature.
CONCLUSION
The ideas in this paper are not exhaustive but have been hurriedly prepared in the light of the potential for the country to dismiss the Eastern Province Royal Foundation as a partisan, tribal or regional escapade. If need be, the thoughts can be expanded should LAZ require amplification or 4 clarification. But it is believed LAZ itself can take up this issue and add meat to it in the national interest.
GODFREY MIYANDA
BRIGADIER GENERAL
19th
AUGUST 2005
Mwalisambilila kanshi bakalamba!! you are not a general for nothing!! intresting article indeed, although its boring to read everything during the world cup period!! Good work .
Procrastination is bad! If government heeded the issues the general brought up way back when we wouldn’t be sitting with this Chitimukulu saga.I’m impressed that the Godfrey Miyanda was raising important issues even when people thought he had disappeared into oblivion.It’s true that even when you do good in secret it shall be brought to light one day. We can’t keep sweeping things under the carpet, we need new laws that are relevant to our times.Lets get rid of archaic laws.
@tandeoTandwe: ok World Cup petition noted but allow us this time to resolve the current vexing chiefs wrangles. I promise to be sensitive during the next World Cup! Godfrey Miyanda///
GREAT PAPER BY THE GENERAL! THAT SAID, I HOWEVER, WISH TO BE ADVISED BY THE GENERAL ON THE FOLLOWING: 1) WHEN DOS THE PRESIDENT REFUSE TO RECONISE A PARTICULAR CHIEF AND WHAT SHOULD BE THE REASONS? 2) I UNDERSTAND THAT EACH CHIEFDOM HAS PROVIDED THE GOVERNMENT DETAILS OF HOW PEOPLE THERE FOLLOW ONE ANOTHER INHERITING THEIR CHIEFS THROUGH THINGS LIKE A FAMILY TREE AND IF SO, IS IT NOT ON THE BASIS ON THIS INFORMATION THAT THE GOVERNMENT REFUSES TO RECOGNISE SOME CHIEFS WHO DO NOT FOLLOW THIS CHANNEL KNOWN BY THE GOVT.? 3) IN THE CURRENT SCENARIO WHERE CORRUPTON AND MONEY ARE AT PLAY, IS IT POSSIBLE THAT THE POWERS OF THE COMMUNITIES HAVE BEEN COMPROMISED AND AS SUCH SOME POWERFUL PEOPLE ARE BUYING THROUGH TO THESE CHIEFTAINCY POSITIONS USING THESE NASTY WAYS? ………..
CONTD: 4) WHEN SHOULD THE GOVT. COME IN (INTERFERE) IN TRADITIONAL MATTERS AND WHY DID THE CONSTITUTION OR COMMUNITIES ALLOW FOR THE RECOGNITION OF A TRADITIONAL LEADER BY THE PRESIDENT WHEN THE MATTER IS A TRADITIONAL OR ENTIRELY A COMMUNITY ONE AND IF THE PRESIDENT DOES NOT RECOGNISE THAT CHIEF THEN WHAT OR WHAT DOES THE CONSTITUTION SAY OR COMMUNITY CONCERNED SHOULD DO? 5) WE USED TO HEAR OF PEOPLE OR COMMUNITIES FOLLOWING A FAMILY TREE IN CHOOSING A CHIEF, BUT WE ARE ALSO HEARING THAT IN THESE VERY COMMUNITIES PEOPLE ARE NOW OPTING TO ELECTING A CHIEF THROUGH AN ELECTION TO CHOOSE A CHIEF. IS THIS NOT A POTENTIAL WAY OF SOMEONE BRIBING HIS WAY IN AND SHOULD THE GOVT. JUST LET THINGS THAT WAY? 6) NGONI WARS WERE PARTLY A RESULT OF THESE TRADITIONAL WRANGLES-WHAT WERE THE RESULTS GENERAL
@Kalumba
The general has clarified that there is no provision in the laws of Zambia that can allow the President not to recognise the chief. As the law stands right now the President in breach of the constitution. And once he his immunity is taken out, The chitimukulu will roast him in court.
@WANZELU.
I LIKE THIS, BUT VERY INTERESTING INDEED! WHAT THEN DOES THE SENTENCE, “RECOGNISED BY THE PRESIDENT” MEAN AND IS THERE A PROVISION IN THE CONSTITUTION THAT ALLOWS THE PRESIDENT TO “REVOKE” THAT RECOGNITION AND IF SO, WHEN THIS HAPPENS WHAT HAPPENS TO THAT CHIEF WHOSE RECOGNITION HAS BEEN REVOKED? FURTHER, WANZELU, SHOULD THE GOVERNMENT BE BROUGHT IN OR CALLED UPON TO RESOLVE CHIEFTAINCY WRANGLES ESPECIALLY THOSE RELATED TO INHERITANCE? I MEAN, THIS ALL TALK ABOUT GOVERNMENT NOT INTERFERING APPEARS STRANGE AND CONFUSING BECAUSE THERE IS NO SINGLE ITEM RELATING TO GOVERNANCE WHERE THE GOVERNMENT SHOULD NOT INTERFERE (BAD WORD MAYBE) OR GET INVOLVED NOT EVEN FIFA (WORLD GOVERNING BODY) BECAUSE GOVERNMENTS PROVIDE FOR CERTAIN REQUIREMENTS. LAW BEING AT VARIANCE WITH REALITY…
@Kalumba
Now to answer your question; The constitution only allows the president to “recognise” the chiefs once selected by their traditional authority, but it does NOT provide for the presidency to revoke any recognition as it does not set out the exact circumstances under which the presidency can revoke or refuse recognition. If an enthronement dispute is declared then only the traditional authority can take the matter to court. So clearly its NOT within the president’s powers to revoke a chief’s enthronement but only for courts and the traditional authorities.
I hope this simple explanation helps you to understand how the constitution has limited the presidential powers regarding the chiefs appointment and recognition.
Can the government dictate who you want to…
@Kalumba
On the issue of governance, I would say there are so many instances where the government ‘s interference is limited in a functioning democracy of course. Its only under a brutal dictatorship that you find the president stretching his/her tentacles all over the place. As such any president in functioning democratic system should know how far his/her powers can stretch.
I gave you an example of a family situation in which the president’s powers are limited because governance starts with a family unit all the way to political and traditional organisations. It would be very dangerous to give the president unlimited powers because he would then use them to get other people ‘s wives with impunity like the late IDI AMINI DADA of Uganda did.
Too much power corrupts,…
Nice piece general. I couldn’t agree more
I mean this has helped me to understand this issue better.
Are we witnessing a Miracle? Saulosi, welcome back to the club of reasonable bloggers. Unfortunately, I am sure that you will go back to your usual standard very soon.
Kekekeke @Saulosi, The B.Gen did not mention you!!.
You think its only BaShi Mulenga who respond to my recommendations?
I wrote to Ba Guy Fimofimo, that Tents are needed in Mindolo, if he read or not, but we saw tents erected.
Some comes shouldn’t be about you Saulosi.
@142 its not everything i agree with PF. If.If you have been following me you could have noticed that.I`m above party politics and always calls a spade a spade@Nostradamus naine i`m surprised that the big general has mentioned you.It never crossed my mind that he reads some of the comments here.I think this reflects his humble nature which is not usual for an ex combatant.I`m impressed.
@ Saulosi
You are wrong in judging the ex soldiers (officers, nco and troopers). You may be surprised, but we are actually not just educated but also well learned and most importantly, peace loving.
Saulosi is feeling the tsunami of change coming and is walking on the fence now. tomorow he will be rational and will hear him say janza.
This man has always been my model in terms what epitomizes a politician. He is methodical, articulate and above does not pretend to know everything. You raise salient matters that we ought to address to find a lasting situation of people politisizing issues to do with chiefs. Gen Miyanda – a walking president who is highly regarded by all but never voted into power because he belongs to a different class of reasoning than an average person
I concur. In Ghana, for instance, chiefs command great respect and are extremely influential. This is one secret behind the good name Ghana continues to enjoy. That country is admired around the world, and among fellow African countries. There is virtue in what General Miyanda has proposed. I appreciate his effort and great vision, in this regard.
The wrestling tournament between Zambia’s politicians and the chiefs should be done away with. It is unfortunate that the scrupulous politicians are bent on making the chiefs subservient.
@ Mei Matungu
Please clarify:
did you meant “scrupulous” or “unscrupulous” ?
Because if you reaffirm “scrupulous politicians”, you must also believe that pigs can fly.
My apology great friend. I meant to say: “unscrupulous.” Thanks for pointing that out.
B.Gen., You even know that we respect you.
Can you imagine, even during this exciting World Cup I still read all articles from our “big brain” leader. However, most of those recommendations, of our heritage, can only be adopted by Ministry of Justice, but we know who is the minister there. All those good pieces in the constitution are locked up by one man in that very ministry.
I am not even sure who is playing today in World Cup.
@Nostradamus: I also just finished watching Chile and Spain, abaleya! Please note that there has been no formal complaint against the Chitimukulu, instead there have been political and personal pronouncements. Procedure is that the person or persons who wish to challenge the enthronement of Paramount Chief Chitimukulu Manga II have not come out in the open. So on what basis in the Minister rejecting him? Who really is the challenger or pretender to the throne? I contend that “recognition” is an administrative act that should NOT involve the President or even the Minister. The Secretary to the Cabinet or indeed the Clerk of the House of Chiefs should be the one to formalise the submission by publishing in the Government Gazette. Godfrey Miyanda///
We live in the world of 10 characters per comms.. reading this post is like preparaing for exams. I give-up.
While it sounds appeasing to read General Miynada’s article, I have a completely different view. I think the whole idea of chiefs should simply be abolished.
They are increasingly becoming irrelevant. As Zambia develops and urbanises – there will be no need for chiefs. Can you imagine, how many of the people in Lusaka think that they are subjects of Chieftainess Nkomesha – or Kitwe residents – do they even know they fall under Chief Nkana – how about chief Mushili has he got an idea of how to influence Ndola city residents? The whole idea of chiefs is just a dying concept.
Most bloggers (i hope I am mistaken) don’t even know how their “chiefs” become chiefs – let alone if they know their current chief’s name.
Chiefdom will soon be a relic of history.
#Mwamoneni, yaba, this is scary… why you take our minds that way? I agree with you, especially on land issue.
@Mwamoneni: These are valid observations but they can be answered except for space and time. I will discuss this aspect separately. Besides how come your NRC shows your Chief and District? So you know even if you live in a town or on the line of rail!
@ Mwamoneni, those are interesting views, but all the same a banana will always be a banana – same family name, same botanical name – even if it is highly genetically modified. My point is urbanisation or not tradition roots will be necessary and therefore need to be preserved. Some semblance of identity if u like.
In this petulant and senseless orgy that has pitted the all powerful president Michael Sata against a defenseless paramount Chief Chitimukulu; the president has been acting as both the ball-kicker and the referee, and the Chitimukulu as the ball that the president has been kicking at will. But must there not be a different party to act as the referee? And must there not be another party to set the rules of the game?
So far, no fouls have been called, no yellow cards issued, and scarcely any red cards . And the president has been at his best to shift the goal posts whichever way he wants. The president wields the power and is playing to the gallery and to win at all costs. It makes me feel like crying for the embattled paramount Chief Chitimukulu.
@Mwamoneni: this is why I contend that the President should NOT be involved in the process, especially in view of Article 127; there is no justification as the President does NOT appoint or nominate chiefs as he does for constitutional offices. The Chiefs Act was enacted in colonial times; the later provision of Art 127 was added in 1996 by the Chiluba regime and hence the Chiefs Act ought to be amended to keep abreast with the later Constitutional provisions. Godfrey Miyanda///
Dear LT, may God bless you for disallowing my comment. I thought this was an issue worth of public debate. Did I step on someone’s toes?
The General has opened up people’s minds not eyes.This debate of Chitimukulu has taken time to resolve it.If am lozi can I be installed as their TRADITIONAL LEADER when am from Central Province as LENJE?Luvale TRADITIONAL LEADER to be installed on Cewa people of Eastern Province?
The people of Bembaland had to put Kanyanta Chanda as New Chitimukulu after passing through the formalities .Lekeni Kanyanta ateke finish.Before GOVERNMENTS Traditional Leaders where already in power in BC/AD times.
@TK: the Bemba Royal Establlshment have publicly declared who they have selected as Paramount Chief Chitimukulu. The Minister or Government must state who is against this, that is the complainant.
This is how the General should spend his time. Effective discussions/dispositions and not wasting time on cell phone registration etc. Well done General!
@PF LEADER: I think you may be reading a different page; we are debating the Paramount Chief Chitimukulu saga, starting from LT archive 14th June. What are your views? You will remember me in future on the sim-card issue. I wrote to LAZ nine years ago and today we have a serious situation which could get out of hand and spread to other regions. Nine years ago?
@ Kalumba: sorry there is no icon for reply. Cant discuss in detail because of space; will do so separately. 1. I wrote nine years ago; so I would need to review some aspects of the suggestions. 2. Once the communities have resolved, there is nothing for the President to ‘recognise’. Secretary to the Cabinet or Clerk of the House of Chiefs can publish the Gazette. 3. Corruption is ever present; that is the cancer we have cure and it is usually politicians who are at the centre///a. Godfrey MIyanda///
@GENERAL MIYANDA AND WANZELU:
It really is a great debate and an eye opener for many and please accept my ignorance on this. Should the Chiefs be partly to blame then? I say this because I have personally seen chiefs complaining on why they have not been recognised by the government, received complaint letters from chiefs complaining on why government has not recognised them leading to them not receiving the needed authority from their people, etc, something that to me indicates that maybe THE END JUSTIFIES THE MEANS – the MEANS here implying the process of selecting the chief with an END implying the recognition? Is there chance now that we can re-visit this and ensure that the Constitution has this clarified and enshrined in it? General and Wanzelu can we push for it now?
@GENERAL MIYANDA:
I THANK YOU GENERAL FOR THE OFFER (11.1). SHOULD YOU WISH TO CONTACT ME, PLEASE GET MY E-MAIL DETAILS FROM LUSAKA TIMES AND THROUGH THIS VERY COMMENT I AUTHORISE LUSAKA TIMES TO AVAIL YOU WITH MY E-MAIL DETAILS. LOOKING FORWARD TO RECEIVING SOMETHING FROM YOU.
IN YOUR LOVELY LANGUAGE YOU SAY: “TSABOLA WAKALE SAWAWA, MAU A AKULU AKOMA AKAGONERA” AND THAT “KHOSWE WA PA TSINDWI ANAULULA WA PA DZALA”.
GOOD DAY
What of when the preferred person to be a chief is a criminal and people don’t know about it but the government knows? Don’t you think it is the government’s responsible to protect its people? I mean some chiefs are former convicts and are on record having sold land even, land for capital projects like schools, hospitals and airports.
Don’t you think the government should protect us from this “vultures” become chiefs?
Who said that chiefs have immunity from prosecution? Try to find other reason to justify “Great Leader” syndrome. Law on the subject its clear.
@Chenjera: But YOU, the individual, are the FIRST government that is why you must treasure the right to vote/choose for ‘you reap what you sow’. If you choose or accept a corrupt and/or deceitful representative DO NOT cry or be surprised when he or she carries out corrupt/deceitful acts. Godfrey Miyanda///